Commissioner of New York State Office of Mental Health, Respondent-Appellant. v. << (2003)

 Petitioner was acquitted in 1984 of, inter alia, murder in the second degree by reason of mental disease or defect.   He was diagnosed as a paranoid schizophrenic at that time and was placed in respondent's custody pursuant to a series of retention orders.   Following the issuance of a one-year retention order in 2002, petitioner sought a rehearing and review pursuant to CPL 330.20(16), and a jury trial was thereupon conducted.   Respondent appeals from an order directing petitioner's release upon a jury verdict finding that petitioner was mentally ill but that continued residential care and treatment in an institution was not essential to his welfare.  “Both mental illness and dangerousness are necessary elements of any commitment or retention of an insanity acquittee” (Matter of David B., 97 N.Y.2d 267, 276, 739 N.Y.S.2d 858, 766 N.E.2d 565;  see also Matter of Seltzer v. Jose P., 213 A.D.2d 719, 624 N.Y.S.2d 280), and thus we conclude that Supreme Court committed reversible error in precluding respondent from presenting testimony concerning the danger that petitioner could present to himself or others upon his release (see generally David B., 97 N.Y.2d at 279-280, 739 N.Y.S.2d 858, 766 N.E.2d 565).   In view of our determination granting a new trial, we do not address respondent's remaining contention that the verdict is against the weight of the evidence.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and a new trial is granted.

MEMORANDUM: